Harlen Rodriguez-Chavez v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3567
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HARLEN ELISA RODRIGUEZ-CHAVEZ;
A. A. R.-C.,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
______________
On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency Nos. A202-128-945, A202-128-946)
Immigration Judge: Steven A. Morley
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Submitted under Third Circuit L.A.R. 34.1(a)
October 4, 2021
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Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.
(Filed: November 18, 2021)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Harlen Rodriguez-Chavez and her minor child A. A. R.-C. petition for review of a
decision of the Board of Immigration Appeals (“BIA”) affirming the order of the
Immigration Judge (“IJ”) denying Rodriguez-Chavez’s applications for asylum and
withholding of removal. 1 For the reasons that follow, we will deny the petition.
I
Rodriguez-Chavez is a native and citizen of El Salvador. She entered the United
States without admission or parole in October 2014. The Department of Homeland
Security issued her a Notice to Appear in Immigration Court, charging her with
removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rodriguez-Chavez appeared and
conceded removability.
Rodriguez-Chavez filed applications for asylum under 8 U.S.C. § 1158 and
withholding of removal under 8 U.S.C. § 1231(b)(3). In her asylum application, she
stated that she feared the Mara 18 gang would harm her because her father witnessed a
gang murder. At her hearing, she testified that she feared gang retaliation for the legal
work her brother provided in El Salvador and that the police could not protect her from
1
Rodriguez-Chavez listed A. A. R.-C. as a derivative beneficiary on her asylum
application. Because their asylum claims rise and fall together, we refer only to
Rodriguez-Chavez in this opinion. Derivative beneficiary status, however, does not exist
for withholding of removal, so A. A. R.-C. is ineligible for relief on that basis. See
Warui v. Holder, 577 F.3d 55, 58 (1st Cir. 2009); Matter of A-K-, 24 I. & N. Dec. 275,
279 (B.I.A. 2007).
2
the gangs. 2 As relevant to this appeal, she also asserted that she would be persecuted
because she is a member of a purported particular social group (“PSG”): “persons
perceived to have contravened gang rules.” 3 A.R. 196. Additionally, she argued that she
would face persecution for a political opinion, namely her opposition to gang rule.
The IJ denied Rodriguez-Chavez’s applications for asylum and withholding of
removal and ordered her removal. The IJ found Rodriguez-Chavez’s testimony to be
credible, but concluded that she was not entitled to relief because: (1) she had not
presented evidence of past persecution in El Salvador; (2) she could not establish a well-
founded fear of future persecution based on her status as a person “perceived as
contravening gang rules” because this “amorphous” category does not constitute a PSG,
A.R. 59; and (3) her political opinion claim failed since (a) there was insufficient
evidence that “the gang structure in El Salvador is, in essence, a political force that
dominates life in El Salvador,” and (b) “refusal of gang wishes is not an expression of
political points of view such that persecution for them constitutes a political persecution,”
A.R. 61-62. Because Rodriguez-Chavez could not meet the lower standard for asylum,
2
Rodriguez-Chavez’s brother also testified that gangs may retaliate against
Rodriguez-Chavez due to his criminal defense work in El Salvador.
3
Before the IJ, Rodriguez-Chavez argued that she belonged to two other PSGs but
she has not challenged the conclusion that these groups, namely (1) women who cannot
leave an abusive relationship, and (2) family members of someone who witnessed a gang
crime, are not PSGs so any arguments regarding those PSGs are thus waived. United
States v. Quillen, 335 F.3d 219, 224 (3d Cir. 2003).
3
the IJ found that her claim for withholding of removal also failed. Rodriguez-Chavez
appealed to the BIA.
The BIA adopted the IJ’s opinion and dismissed the appeal. The BIA determined
that: (1) “persons perceived to have contravened gang rules” is not a cognizable PSG
because it is “amorphous” and Rodriguez-Chavez “presented insufficient evidence to
show that Salvadoran society perceives, considers, or recognizes such individuals as
being treated any differently than any other person opposing the purposes of the gang,”
and (2) her political opinion claim failed because she did not “establish that the gangs
would target her based on her belief that her opposition to the gang was a political
opinion.” A.R. 3. As a result, the BIA found that Rodriguez-Chavez was not entitled to
asylum or withholding of removal.
Rodriguez-Chavez petitions for review.
II 4
An alien who enters the United States without permission is removable. See 8
U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A). A removable alien may be eligible for
4
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction
over final orders of the BIA under 8 U.S.C. § 1252(a)(1). See Garcia v. Att’y Gen., 665
F.3d 496, 502 n.4 (3d Cir. 2011).
Where, as here, the BIA expressly adopts portions of the IJ opinion, we review
both the IJ and BIA decisions. See S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543-44 (3d Cir.
2018). We review legal determinations de novo and “accept factual findings if supported
by substantial evidence,” meaning we must “uphold the agency’s determination unless
the evidence would compel any reasonable fact finder to reach a contrary result.” Sesay
v. Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (citations omitted).
4
asylum if she demonstrates that she is “unable or unwilling to return to, and is unable or
unwilling to avail [herself] . . . of the protection of, [the country to which she would be
removed] because of persecution or a well-founded fear of persecution on account of . . .
membership in a [PSG] . . . or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also id.§ 1158(b)(1)(B)(i). We first address Rodriguez-Chavez’s PSG claim and then turn to her
political opinion claim.
A
Substantial evidence supports the BIA’s and IJ’s finding that “persons perceived
to have contravened gang rules” is not a cognizable PSG. A.R. 3; Pet’r Br. at 3. A PSG
must be: “(1) composed of members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within the society in question.”
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir. 2018) (quotation marks and citation
omitted). Particularity “addresses the outer limits of a group’s boundaries and is
definitional in nature, whereas social distinction focuses on whether the people of a given
society would perceive a proposed group as sufficiently separate or distinct.” Id. at 548(quotation marks omitted). To satisfy the particularity requirement, “an alleged social
group [must] have discrete and . . . definable boundaries that are not amorphous,
overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is
a member.” Id. (quotation marks and citation omitted).
Rodriguez-Chavez’s proposed PSG lacks social visibility and definable
boundaries. First, the concept of “contravening gang rules” is vague. For example, it is
5
unclear whether “contravening gang rules” means only active contravention, such as
defying curfews, requests for bribes, or recruitment efforts, or if it also captures more
passive opposition to gang activity, of which the gang itself may not even be aware.
Second, there is no evidence that Salvadoran society would recognize those who
contravene gang rules as socially distinct or different from others who oppose gangs.
Third, a similar and more specific group than that which Rodriguez-Chavez proposes—
those targeted for resisting gang recruitment—is not recognized as a cognizable PSG
because such a group is neither particular nor socially distinct. See Santos-Ponce v.
Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (explaining that “minors who oppose gang
membership” is not “sufficiently particular or socially distinct”); Paiz-Morales v. Lynch,
795 F.3d 238, 244 (1st Cir. 2015) (concluding that proposed group of individuals
opposed to gang membership lacked particularity because “[a] group consisting of all
Guatemalan citizens who do not sport gang colors and tattoos is by definition too
amorphous and overbroad to be particular”); Rodas-Orellana v. Holder, 780 F.3d 982,
991-93 (10th Cir. 2015) (holding that proposed group of “El Salvadoran males threatened
and actively recruited by gangs, who resist joining because they oppose the gangs” lacked
social distinction); see also Quintanilla-Mejia v. Garland, 3 F.4th 569, 589 (2d Cir. 2021)
(concluding that “former gang members who renounce their gang membership,” “former
gang members who actively oppose gangs,” and “persons who (regardless of former gang
association) work to help youths resist gang membership” in El Salvador do not satisfy
the particularity or social distinction elements). Accordingly, Rodriguez-Chavez has
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failed to demonstrate that her proposed PSG is particular or socially distinct. Thus, her
alleged fear of persecution based upon membership in such a group does not provide a
basis for asylum.
B
To qualify for asylum based on a political opinion, a petitioner must demonstrate
that she has faced or will face persecution because of that opinion. 8 U.S.C.
§ 1101(a)(42)(A); INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); see also Ndayshimiye
v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009) (“[A] key task for any asylum applicant
is to show a sufficient ‘nexus’ between persecution and one of the listed protected
grounds.”). Even assuming Rodriguez-Chavez’s views about gangs constitute a political
opinion, substantial evidence supports the BIA’s conclusion that she “did not meet her
burden to establish that the gangs would target her based on . . . her opposition to the
gang.” A.R. 3. She has not shown that the gang was aware of her opinion or that the
gang would persecute her because of that opinion. As a result, her political opinion claim
fails. 5 See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 609 (3d Cir. 2011)
(rejecting asylum claim where there was “no evidence that [petitioner’s] refusal to join
5
Indeed, Rodriguez-Chavez does not contest this no-nexus finding, arguing
instead that the IJ erred by requiring that the potential persecutor “must be a government,
or that the applicant must have a political opinion regarding a formal government.” Pet’r
Br. at 30. We need not address this argument because, even assuming that the
Salvadoran gangs constitute a government for asylum purposes, Rodriguez-Chavez has
failed to establish the requisite nexus between her political opinion and the threat of
future persecution by those gangs.
7
was taken by the gang as an expression of [a] political opinion” and concluding that
“refusal . . . based on an internally held political opinion . . . cannot support a claim that
he was persecuted on account of that political opinion”). 6
III
For these reasons, we will deny the petition for review.
6
Because Rodriguez-Chavez’s asylum claims fail, she is also not entitled to
withholding of removal, which carries a higher standard of proof. See Blanco v. Att’y
Gen., 967 F.3d 304, 315 (3d Cir. 2020).
8